May 17, 2016

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May 17, 2016
May 17, 2016
Death Penalty.
Initiative Statute.
Presented to:
Assembly Public Safety Committee
Hon. Reginald B. Jones-Sawyer, Sr., Chair
Senate Public Safety Committee
Hon. Loni Hancock, Chair
May 17, 2016
LAO Role in Initiative Process
Fiscal Analysis Prior to Signature Collection
State law requires our office to work with the Department of
Finance to prepare a joint impartial fiscal analysis of each
initiative before it can be circulated for signatures. State
law requires that this analysis provide an estimate of the
measure’s fiscal impact on the state and local governments.
The fiscal analysis must be submitted to the Attorney General
within 50 calendar days from the initiative’s submission date.
A summary of the estimated fiscal impact is included on
petitions that are circulated for signatures.
Analyses After Measure Receives Sufficient Signatures to
Qualify for the Ballot
State law requires our office to provide impartial analyses
of all statewide ballot propositions for the statewide voter
information guide, including a description of the measure and
its fiscal effects.
We are currently in the process of preparing these materials.
May 17, 2016
Murder and the Death Penalty
First degree murder is generally defined as the unlawful
killing of a human being that (1) is deliberate and
premeditated or (2) takes place at the same time as certain
other crimes, such as kidnapping.
First degree murder is punishable by a life sentence in state
prison with the possibility of being released by the state
parole board after a minimum of 25 years. However, current
state law makes first degree murder punishable by death
or life imprisonment without the possibility of parole when
specified “special circumstances” of the crime have been
charged and proven in court.
Existing state law identifies a number of special
circumstances that can be charged, such as in cases when
the murder is carried out for financial gain or more than one
murder was committed.
Legal Challenges to Death Sentences
Upon the conclusion of the murder trial, defendants who are
found guilty and receive a sentence of death are entitled to a
series of legal challenges.
– Direct Appeals. Under existing state law, direct
appeals—or arguments that violations of state law or
federal constitutional law took place during the trial—are
automatically appealed to the California Supreme
Court. These appeals focus on the records of the court
proceedings that resulted in the death sentence.
– Habeas Corpus Petitions. Habeas corpus petitions—or
legal challenges involving factors of the case that would
not be evident in the records reviewed in the direct
appeals (such as claims that the defendant’s counsel was
ineffective)—are heard first in the California Supreme
Court and then the federal courts.
May 17, 2016
Legal challenges to death sentences can take more than a
couple of decades to complete in California. An estimated
337 direct appeals and 263 state habeas corpus petitions
were pending in the California Supreme Court as of April
The California Supreme Court appoints attorneys, who meet
qualifications established by Judicial Council, to represent
individuals who have been sentenced to death but cannot
afford legal representation. Different attorneys are generally
appointed to direct appeals and habeas corpus petitions.
As of April 2016, 49 inmates were waiting for attorney
appointment for their direct appeals and 360 were waiting for
attorney appointment in their habeas corpus petitions.
Implementation of the Death Penalty
Since the current death penalty law was enacted in California
in 1978, 930 individuals have received a death sentence. Of
these, 15 have been executed, 103 have died prior to being
executed, 748 are in state prison with death sentences, and
64 have had their sentences reduced by the courts.
Condemned inmates generally cost more to house than
typical inmates due to increased security requirements, such
as being housed in single cells and being escorted at all
times by one or two officers while outside of their cells.
The state prisons generally use lethal injection to execute
condemned inmates. In 2006, federal courts stopped
executions after ruling that the state’s lethal injection
procedures were unconstitutional. Between 2007 and 2010,
the state revised its execution regulations. However, state
courts ruled that the state did not follow the Administrative
Procedures Act (APA) when revising its procedures. As a
result, executions cannot resume until the state develops
regulations in accordance to the APA. Draft regulations were
subsequently published in November 2015 and are currently
undergoing public comment.
May 17, 2016
Major Provisions of Proposed Initiative
Habeas Corpus Petition Hearings
The measure requires that habeas corpus petitions first be
heard in the trial courts instead of the California Supreme
Court. These petitions would generally be assigned to the
judge who presided over the original murder trial. Trial courts
would be required to issue a statement explaining the basis
for their ruling. This decision could then be appealed to the
Courts of Appeal, followed by the Supreme Court.
Cases pending before the Supreme Court could be
transferred to the trial courts.
Time Limits on Death Penalty Process
The measure requires that the direct appeal (in the Supreme
Court) and the initial habeas corpus petition (in the trial court)
be completed within five years of the death sentence unless
“extraordinary and compelling” reasons justify the delay.
The measure requires that initial habeas corpus petitions
be filed with the trial courts within one year of attorney
appointment. The trial courts would then have no more than
two years to issue its decision. If a petition is not filed within
this time period, the court must dismiss the petition unless
it determines that the defendant is likely either innocent or
ineligible for the death sentence.
In order to help meet these timeframes, the measure
imposes various other limits. For example, the measure limits
the number of additional habeas corpus petitions that may be
May 17, 2016
Major Provisions of Proposed Initiative
Appointment of Attorneys
The measure directs the Judicial Council and California
Supreme Court to reevaluate and amend the attorney
qualifications for death penalty legal challenges in order to
expand the number of attorneys available for appointment to
ensure cases are heard in a timely manner while ensuring
competent representation.
The measure requires that certain Court of Appeal appellate
attorneys be required to accept appointment to direct appeals
under certain circumstances. For habeas corpus petitions,
the measure shifts authority for appointing attorneys from the
California Supreme Court to the trial courts.
Various Other Changes
The measure makes various changes to Habeas Corpus
Resource Center (HCRC) operations. This includes shifting
oversight of HCRC to the Supreme Court upon elimination of
its board and limits HCRC legal activities.
The measure specifies that every person under a death
sentence must work while in state prison and have their pay
deducted if the inmate owes victim restitution, subject to state
laws and regulations. Because the measure does not change
current state regulations related to inmate work, existing
practices would not necessarily be changed. The measure
increases from 50 percent to 70 percent the amount that
may be deducted from inmate wage and trust accounts if the
inmate owes victim restitution.
The measure exempts execution procedures from the
APA and allows the housing of condemned inmates at any
prison. The measure also makes various changes regarding
the method of execution used by the state. For example,
challenges to the method may only be heard in the court that
imposed the death sentence and the state must generally
maintain a valid method of execution.
May 17, 2016
Major Fiscal Effects of Proposed Initiative
State Courts
This measure would likely increase court workload and
require significant staffing increases to address the hundreds
of pending cases within the time limits required by the
measure. The measure would also likely require a significant
increase in the number of attorneys appointed to represent
condemned individuals. This could require the recruitment
and training of qualified attorneys.
These costs are subject to considerable uncertainty and
would depend on how this measure was interpreted and
implemented. For example, the courts might determine that
more than one attorney should be appointed to meet the
measure’s required timeframes.
In total, the extent of the increase in state costs in the near
term is unknown and would depend on how the courts
addressed the increased workload, but could potentially be in
the tens of millions of dollars annually in the near term.
The fiscal impact of the measure in the longer run is less
certain. On the one hand, to the extent the measure resulted
in a reduction in the number of cases currently pending and
the amount of time each case takes, the measure would
eventually allow the state to reduce its expenditures on postconviction proceedings. On the other hand, the state courts
would need to maintain a certain level of staffing at all times
to handle death penalty cases.
The measure could also result in a net long-term increase
in the cost of post-conviction proceedings under certain
circumstances. For example, the additional layers of required
review for habeas corpus petitions could add to the time
and cost of each case. Moreover, if the measure resulted in
the state appointing different attorneys for habeas corpus
petitions before the trial courts and the Court of Appeal, the
cost of each case could also increase.
May 17, 2016
Major Fiscal Effects of Proposed Initiative
State Prisons
The measure could result in reduced state prison costs to
the extent the state changes the way it houses condemned
inmates. For example, if male inmates were transferred to
other prisons instead of being housed in single cells at San
Quentin, it could reduce housing and supervision costs. In
addition, to the extent the measure resulted in additional
executions that reduced the number of condemned inmates,
prison costs could be further reduced.
In total, this reduction in state prison costs could potentially
reach the tens of millions of dollars annually.
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